A recent article by arstechnica highlights an alarming trend of increased patent troll litigation in the United States. Relying on a recent study by Robin Feldman, a professor at UC Hastings College of Law, arstechnica suggests patent trolls filed 40% of all patent infringement lawsuits in 2011. This was up from only 22% in 2007. Meanwhile, patent lawsuits filed by operating companies dropped during the same time period.But there’s more to the story.

The study was developed from data compiled by the Lex Machina database, a project originally developed at Stanford University Law School. The authors compiled sample sets of 100 patent litigation cases filed in each year from 2007 to 2011. The filing parties were then analyzed and categorized by type, including operating companies and “patent monetizers” – or patent trolls. While the results suggest patent troll litigation has experienced a prolific increase since 2007, the authors acknowledge that the 2011 America Invents Act may have skewed the data. One of the new rules developed under the America Invents Act requires that most patent cases against multiple defendants be filed individually. Under the old system, patent trolls could file a single lawsuit against tens or hundreds of defendants.

As a result, the actual number of patent lawsuits may have increased in 2011 simply as a result of new rules requiring plaintiffs to file lawsuits against multiple defendants separately. To test this theory, the authors analyzed the number of defendants sued in each case filed from 2007 to 2011. The authors conclude that the “number of defendants sued by patent monetization entities has also increased.”

But this doesn’t tell the whole story. Surprisingly, the number of defendants sued by patent trolls – compared to the total number of defendants sued in all patent litigation – has only risen marginally from 2007 to 2011. In 2007, defendants of patent troll suits accounted for 23% of all patent litigation defendants. In 2011, that number climbed to 28%. In 2008, 2009, and 2010, the numbers actually decreased to 16%, 22%, and 22%, respectively. So is patent troll litigation really on the rise? Not really. Patent troll litigation decreased in every year since 2007 except 2011. And in 2011, it only increased marginally. Whether or not this is a trend remains to be seen.

Sources: http://arstechnica.com/tech-policy/2012/10/trolls-filed-40-of-patent-infringement-lawsuits-in-2011/ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158455

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